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Wednesday, April 16, 2014

Northwestern's Appeal to NLRB on Football Union

Last week, Northwestern sought review of the NLRB Regional Director's decision that the Northwestern football team could vote on unionization. A few of you have asked me about the brief, so here it is - a fifty-pager!

Northwestern really came out swinging in some of the introductory paragraphs:

In this unprecedented decision, the Regional Director set out to alter the underlying premise upon which collegiate varsity sports is based. By finding that NorthwesternUniversity’s football program is a commercial enterprise and that its football scholarship student-athletes are “employees” within the meaning of the National Labor Relations Act(“Act”), the Regional Director ignored the evidence of Northwestern’s primary commitment to the education of all of its student-athletes, evidence that fully supports that its student-athletes are primarily students, and not employees. Based on the testimony of a single player who admitted that he aspires to play professional football, the Regional Director described Northwestern’s football program in a way that is unrecognizable from the evidence actually produced at the hearing. Northwestern’s football program stands alone as the most successful FBS program for educating athletes to graduation. Whatever one thinks of athletics at other institutions, Northwestern presented overwhelming evidence establishing that its athletic program is fully integrated with its academic mission, and that it treats its athletes as students first. That CAPA’s sole fact witness, Mr. Colter, chose to prioritize his professional athletic aspirations cannot and should not form the basis of any finding about the football program in general and its role in the education of Northwestern’s student-athletes.

Instead of objectively setting forth the relevant facts, the Regional Director’s decision reads like a brief submitted by an advocate, with the facts he chooses to stress set out in the text of the decision and those which are equally important but which do not support his pre-determined outcome relegated to footnotes or completely ignored. In short, the Regional Director not only ignored much of the record, he also misconstrued, disregarded and misapplied Board precedent and failed to consider, contrary to the dictates of the Act and Supreme Court precedent, the public policy ramifications and practical consequences of his decision to extend the definition of an employee under the Act to collegiate student-athletes at Northwestern.

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Produced by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania. McQuaide Blasko also has offices in Hershey and Hollidaysburg. Mr. Miles works in the firms's Litigation and Labor & Employment Law practice groups, providing legal services to employers and employees relating to human resources, employment discrimination, and other employment law issues.